Young Scholars Law最新文献

{"title":"Frank Meyer: Fusionist as Federalist","authors":"J. Adler","doi":"10.1093/OXFORDJOURNALS.PUBJOF.A005053","DOIUrl":"https://doi.org/10.1093/OXFORDJOURNALS.PUBJOF.A005053","url":null,"abstract":"Frank S. Meyer played a central role in defining the post-war American conservative movement. Through his writings and political activities, he defined and defended an ideological \"fusion\" of traditional conservative principles and libertarian political beliefs. While concerned with maintenance of an objective moral order and the pursuit of virtue in the individual, Meyer argued that the freedom of the person is the central and primary end of political society. The American system of government, with its horizontal and vertical separations of power, came closer than any political system in history to providing the protection for individual liberties necessary for the effective pursuit of virtue. Federalism was particularly important as it could forestall the centralization of government power. Virtue, to have any meaning, had to be freely chosen, but providing for individual freedom provided no guarantee that individuals would pursue virtuous ends. By the same token, federalism and the separation of powers did not guarantee that state governments would adopt wise or moral policies, as the history of the civil rights struggle attests. Nonetheless, Meyer believed federalism was essential if individual freedom was to endure.","PeriodicalId":337945,"journal":{"name":"Young Scholars Law","volume":"210 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-10-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121295068","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Carrots, Sticks, and the Multiplication Effect","authors":"Giuseppe Dari�?Mattiacci, Gerrit de Geest","doi":"10.2139/ssrn.1026762","DOIUrl":"https://doi.org/10.2139/ssrn.1026762","url":null,"abstract":"Although a punishment can be applied only once, the threat to punish can be repeated several times. This is possible because, when parties comply, the punishment is not applied and can thus be used to support a new threat. We refer to this feature of sticks as the \"multiplication effect\". The same is not possible with promises to reward, since carrots are used up every time a party complies; hence, at each round a new reward is needed. We show that the multiplication effect of sticks has pervasive consequences in economics and law, and provides a unified explanation for seemingly unrelated phenomena such as comparative negligence, legal aid, the dynamics of riots and revolutions, the use of property rules, the commons problem, and the most-favorednation clause in settlement negotiations.","PeriodicalId":337945,"journal":{"name":"Young Scholars Law","volume":"62 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132564841","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"'A Guantanamo on the Sea': The Difficulties of Prosecuting Pirates and Terrorists","authors":"E. Kontorovich","doi":"10.15779/Z38TH89","DOIUrl":"https://doi.org/10.15779/Z38TH89","url":null,"abstract":"As a surge in pirate attacks in the seas around the Horn of Africa threatens to seriously damage international trade, the nations of the world have refused to enforce international law against these criminals. The dozens of nations patrolling the Gulf of Aden have ample legal authority to detain and prosecute pirates. Yet the United States and other navies have, as a matter of policy, been releasing apprehended pirates because of the difficulty of detaining or successfully prosecuting them. These fears are not unwarranted. As this Essay shows, while on the one hand international law requires all nations to fight pirates, a variety of other international legal rules - ranging from the Geneva Conventions to refugee law to the Law of the Sea Treaty - are in tension with this goal. These tensions are daunting enough to keep nations from even trying. The legal issues that prevent states from effectively dealing with pirates are precisely the same as those that have plagued responses to international terrorism. The War on Piracy and the War on Terror both raise questions about the legal status of conflicts between traditional states and diffuse multinational networks. Pirates, like terrorists, fall in the gray zone between military combatants and civilians. But the similarities between the legal problems of piracy in Somalia and those of the battle against international terrorism do not end there. Lack of clarity about pirates' prisoner of war status, the use of prolonged detention, rendition to countries with poor human rights records, claims of abuse by the detainees, accidental killings of innocent civilians, the difficulty of proving cases arising from the field of active military operations in civilian court, and the legality of targeted killings of suspected wrongdoers are just a few of the issues that have plagued both legal efforts against international terrorists and against piracy in just the first few months of the current Somali campaign. The legal response to terrorism has been among the most contentious public issues in recent years. It is widely asserted that trying foreign terrorists in civilian courts is a workable response. However, the failure of this same strategy in the case of piracy - indeed, the refusal of the very nations that promote such an approach for terrorism to even attempt it with piracy - suggests that the civilian approach to terrorism will be extraordinarily challenging. For a variety of reasons, piracy would be far easier to deal with than terrorism. Thus, the legal impediments to dealing with piracy serve as an ideal case study for the future of terrorism prosecutions.","PeriodicalId":337945,"journal":{"name":"Young Scholars Law","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129562898","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Taking the Utilitarian Basis for Patent Law Seriously: The Case for Restricting Patentable Subject Matter","authors":"David S. Olson","doi":"10.2139/ssrn.933167","DOIUrl":"https://doi.org/10.2139/ssrn.933167","url":null,"abstract":"Courts, the Patent Office, and commentators are in vigorous disagreement about what types of innovation should be patentable, and what, if any, innovation should remain off limits to patenting. This Article shows that the disarray in the area of patentable subject matter results from a widespread failure to take the utilitarian policy underlying patent law seriously. Despite near-universal agreement that patent rights exist to provide incentives for innovation by allowing inventors to recoup their costs of research and development, courts have expanded patentable subject matter to many new fields without first demanding evidence that the newly patentable fields suffer from lack of incentives to innovate. The failure to ask the threshold question of whether patents are needed in a particular field to achieve efficient levels of innovation has resulted in both incoherent case law on patentable subject matter and costs to society from increased patent monopolies.This Article explains that the sensible basis for determining patentable subject matter is to determine whether innovation is unlikely in the absence of patents. Part II of the Article sets forth an explanation and model showing that there is no reason to expand patentable subject matter into fields where innovation is already healthy due to other incentives such as low research and development costs, leadtime, or reputation benefits from innovation, or other legal protections such as trade secret and copyright law. To the extent that others argue for patentability even where there is no market failure in innovation, they are not following the utilitarian rationale for patent law, and inefficiency results.Part III of the Article demonstrates how courts historically considered the issue of innovation market failure, at least implicitly, in their decisions as to what types of inventions were unpatentable. But with the advent of software and the Information Age, the courts’ patentable subject matter tests no longer fit. Rather than reworking their tests to serve patent law’s underlying rationale, they instead slowly abandoned their role as gatekeepers of patentable subject matter, resulting in the current inefficient regime in which almost all innovation is patentable. The courts’ failure to grapple with the utilitarian rationale for patentability means that current judicial consideration of patentable subject matter continues to be misdirected. Part IV applies the model and explanation from Part II to the sample case of business methods - one of the most harmful areas of patenting - showing an example of a field in which patents are not efficient. Part V draws out the implications from the analysis presented in this Article, and suggests solutions - most prominently, that the courts or Congress should revive the patentable subject matter gatekeeper function. The Article concludes in Part VI.","PeriodicalId":337945,"journal":{"name":"Young Scholars Law","volume":"352 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123334575","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Majority that Wasn't: Stare Decisis, Majority Rule, and the Mischief of Quorum Requirements","authors":"J. Nash","doi":"10.2139/ssrn.1217876","DOIUrl":"https://doi.org/10.2139/ssrn.1217876","url":null,"abstract":"In this Paper, I consider the question of precedential value in settings in which a case is decided by a majority of judges hearing a case but less than a majority of judges authorized to decide the case - a situation I refer to as a \"minority majority.\" In analyzing the question of treatment of minority majorities, the Paper makes three broad contributions to the literature. First, it disaggregates the requirements that undergird the notion that a Court opinion receive precedential effect into three categories: quorum requirements, action requirements, and voting rule requirements. The Paper's second broad contribution is its normative analysis of the precedent question. The Paper identifies two categories of plausible responses to the problem. First, one might increase the stringency of the requirements that fall under the first two categories - that is, quorum and action requirements in order to minimize possible minority majority cases. Second, one might address the problem by varying the precedential effect of cases decided by minority majorities. Specifically, one might accord them \"full\" precedential effect, no precedential effect, narrow precedential effect, or limited precedential effect. The Paper argues that affording narrow and limited precedential effect may be desirable, and that affording no precedential effect on the court that issued the decision is an underexamined option. The third contribution that the Paper makes is to use the discussion of the normative question to shed light on broader issues. These include the legitimacy of courts, the relationship between legitimacy and stare decisis; the proper breadth of court opinions and holdings; and questions of institutional choice as to who should decide how these questions are resolved; and the importance of judicial minimalism.","PeriodicalId":337945,"journal":{"name":"Young Scholars Law","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123940641","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Do Hidden Taxes Increase Welfare?","authors":"Brian Galle","doi":"10.2139/ssrn.1113585","DOIUrl":"https://doi.org/10.2139/ssrn.1113585","url":null,"abstract":"This draft offers a critical review of the economic literature on the efficiency of low-salience taxes. In particular, I explore the possibility that hidden taxes may in fact be more efficient than others. Since the entire field comprises only a handful of papers, the review is devoted mostly to identifying gaps in our present understanding. For example, the literature so far omits any consideration of the impact of hidden taxes on fiscal federalism, and gives only glancing attention to possible distributive consequences, both topics I attempt to highlight here. Additionally, I attempt to integrate with the tax literature some recent developments in our understanding of bounded rationality in consumers more generally. [Note: This is a working paper version of \"Hidden Taxes.\"]","PeriodicalId":337945,"journal":{"name":"Young Scholars Law","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134497575","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Taxing Blackstone","authors":"Victor Fleischer","doi":"10.2139/ssrn.1012472","DOIUrl":"https://doi.org/10.2139/ssrn.1012472","url":null,"abstract":"This Essay analyzes the \"Blackstone Bill,\" which would treat Blackstone and other publicly-traded private equity firms as corporations for tax purposes. Earlier this year, the Blackstone IPO fueled a heated, somewhat confusing debate about taxing private equity. This Essay seeks to clarify what the legislation will accomplish, and what it won't. There are two ways of looking at the Blackstone Bill. The first way is as a substantive change in the tax law. Specifically, the bill may be viewed as a rifleshot approach to changing the tax treatment of carried interest. The second way is to think of the bill as a mechanical correction of the publicly-traded partnership rules. Specifically, the bill may be viewed as a technocratic response to the regulatory gamesmanship of Blackstone's deal structure, which allows it to avoid the corporate tax that other, similarly-situated financial intermediaries pay. In terms of a change in the substantive tax treatment of carried interest, the merits of the Blackstone Bill are questionable. The efficiency and distributive consequences are unclear; the revenue potential is indeterminate. The bill fails to achieve what we ultimately want: taxing the returns from managing financial assets consistently regardless of the form in which the business is conducted. But the Blackstone Bill is nonetheless defensible as a response to aggressive regulatory gamesmanship. To put it more provocatively, the bill is justifiable because the Blackstone IPO structure is offensive to the rule of law values on which our tax system relies.","PeriodicalId":337945,"journal":{"name":"Young Scholars Law","volume":"75 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-09-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127195930","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Bankrupt Profits: The Credit Industry's Business Model for Postbankruptcy Lending","authors":"Katherine M. Porter","doi":"10.2139/SSRN.1004276","DOIUrl":"https://doi.org/10.2139/SSRN.1004276","url":null,"abstract":"Consumer credit and consumer bankruptcy filings have grown rapidly over the last two decades, and several researchers have attempted to understand the relationship between these two intertwined features of the modern American economy. Teasing out causation is almost impossible, as consumer advocates lay blame on the industry and the industry responds by citing the same data to show consumer misbehavior. Using a novel vantage point, this analysis examines what the credit industry's behavior toward recently bankrupt families reveals about its internal profit models and the likely causes of consumer bankruptcy. The empirical evidence on postbankruptcy credit solicitation belies the industry's characterizations of bankrupt families as opportunistic or strategic actors. Original data from longitudinal interviews with consumer debtors show that many lenders target recent bankrupts, sending these families repeated offers for unsecured and secured loans. The modern credit industry sees bankrupt families as lucrative targets for high-yield lending, a reality that has important implications for developing optimal consumer credit policy and bankruptcy law.","PeriodicalId":337945,"journal":{"name":"Young Scholars Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128834700","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Freedom of the Press 2.0","authors":"Edward Lee","doi":"10.2139/SSRN.1008877","DOIUrl":"https://doi.org/10.2139/SSRN.1008877","url":null,"abstract":"In today's digital age, copyright law is changing. It now attempts to regulate machines. Over the past twenty years, and particularly with the advent of the Internet, copyright holders have increasingly invoked copyright law to regulate directly - indeed, even to prohibit - the manufacture and sale of technology that facilitates the mass dissemination of expressive works. Although the concerns of copyright holders about the ease of digital copying are understandable, the expansion of copyright law to regulate - and, in some cases, to prohibit - technologies raises a troubling question. Can the government regulate under copyright law technologies that facilitate the dissemination of speech, consistent with the First Amendment? If so, are there any limits to what the government can do? Or does copyright law have constitutional carte blanche to regulate technologies, without any First Amendment scrutiny? Because copyright law, dating back to the first Copyright Act of 1790, traditionally refrained from regulating technologies directly, these questions were scarcely considered before. But, today, these questions have vital importance as copyright law and other laws proposed in service of copyright holders contemplate even greater regulation of emerging technologies that are revolutionizing the ability of individuals to create expressive content on the Internet, in the \"Web 2.0\" culture of user-created content. However, despite their importance, these questions have escaped attention in legal scholarship. This Article attempts to answer these questions by tracing the historical development of the \"freedom of the press\" that led to the Framers' inclusion of the concept in the First Amendment. My core thesis is twofold: (i) the Framers understood the freedom of the press as the freedom of the printing press - a speech technology - to be free of intrusive governmental regulation, including restrictions on technology imposed under copyright law; and (ii) today, the Sony safe harbor operates as a \"First Amendment safeguard\" within copyright law that is designed to protect the freedom of the press and the development of speech technologies. All future attempts by Congress to regulate speech technologies under copyright law must answer to the Free Press Clause or the Sony safe harbor.","PeriodicalId":337945,"journal":{"name":"Young Scholars Law","volume":"264 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124566577","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Window into the Regulated Commons: The Takings Clause, Investment Security, and Sustainability","authors":"Josh Eagle","doi":"10.15779/Z38ZV9W","DOIUrl":"https://doi.org/10.15779/Z38ZV9W","url":null,"abstract":"The holding of the U.S. Court of Appeals for the Federal Circuit in American Pelagic Fishing Co. v. United States points to the conclusion that the government will almost never be liable, under the Takings Clause, when fisheries regulations reduce the value of commercial fishing permits, vessels, or gear. From the perspective of natural resource economics, this is a healthy result. Economists suggest that solving commons problems requires that natural resources be under the complete control of a sole owner who makes self-interested decisions about resource use, and if the Fifth Amendment required the government owner to compensate fishermen when it tightened regulations, it would hamper the government's ability to regulate optimally. One problem with the economic theory of commons solution, however, is that it does not distinguish between sole private ownership and sole government ownership in terms of their application. In this Article, I argue that government ownership is fraught with problems that do not occur in the private ownership context. To the extent that government resource owners rely on entrepreneurs to capture and sell natural resources, the government must play two roles: regulator and facilitator. These roles frequently come into conflict, inevitably compromising the effectiveness of regulation. Furthermore, entrepreneurs have incentives to lobby against long-term conservation. The poor condition of United States fisheries is proof that these two problems - government's dual role and fishermen's lobbying - are preventing the Magnuson-Stevens Fishery Conservation and Management Act from achieving its goal of sustainable fisheries. Until the Act is changed to reduce both fishermen's incentive to lobby against conservation and the likelihood that regulators will accede to their demands, it will probably not succeed.","PeriodicalId":337945,"journal":{"name":"Young Scholars Law","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-07-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127617631","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}